JUDGE:	Nichols J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2019
DATE OF JUDGMENT:	2 March 2020
CASE MAY BE CITED AS:	Lenehan v Powercor Australia Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 82

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PRACTICE AND PROCEDURE – Court approval of costs of a representative proceeding – Modtech Engineering Australia Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 –Matthews v Ausnet Electricity Services Pty Ltd [2014] VSC 663 – Petersen Superannuation Fund Pty Ltd v Bank of Queensland Limited (No 3) [2018] FCA 1842 – Supreme Court Act 1986 (Vic), s 33V – Whether costs claimed are reasonable in all the circumstances and proportionately incurred – Camilleri v The Trust Company (Nominees) Ltd [2015] FCA 1468 – Modtech Engineering Australia Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 – Downie v Spiral Foods Pty Ltd & Ors [2015] VSC 190 – Matthews v Ausnet Electricity Services Pty Ltd & Ors [2014] VSC 663 – Legal Profession Uniform Law (Vic), s 172 – Civil Procedure Act 2010 (Vic), s 24 – Invalid conditional costs agreements – Uplift fee – Whether an additional loading for skill care and attention can be approved – Legal Profession Uniform Law (Vic), s 182, s 185 – Supreme Court General (Civil Procedure) Rules 2015 (Vic), r 63.48 – Whether special grounds arise out of the nature and importance or the difficulty or the urgency of the case – Jenkins & Ors v G J Coles & Co Ltd [1993] 1 VR 155 – Supreme Court General (Civil Procedure) Rules 2015 (Vic), r 63.34.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T P Tobin SC with Mr A Fraatz	Maddens Lawyers
For the Defendant	No appearance

HER HONOUR:

Introduction

On 29 October 2019, the parties reached a settlement of this proceeding conditional upon the Court approving the settlement, pursuant to s 33V of the Supreme Court Act 1986 (Vic). On terms including a denial of liability the defendant agreed to pay the plaintiff and group members the sum of $17,500,000, inclusive of interest and costs.

On 20 December 2019, I approved the settlement of the proceeding. That is, I approved the plaintiff’s entry into the settlement agreement. I did not on that occasion approve the plaintiff’s proposed scheme for the distribution of settlement moneys between group members, or the plaintiff’s solicitors’ application for costs. On 16 December 2019 I required further material to be submitted in respect of the proposed settlement distribution scheme. Separately, one aspect of the proposed scheme is the subject of an objection, which is yet to be determined.[1]
[1]By a direction made on 21 February 2020 the parties (the plaintiff and the insurers of certain group members who are objecting to one aspect of the proposed settlement distribution scheme) were required to file…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lenehan v Powercor Australia Ltd

Details

AGLC: Lenehan v Powercor Australia Ltd [2020] VSC 82
Case: [2020] VSC 82
Decision Date: 2 March 2020

CaseChat Overview and Summary

Lenehan v Powercor Australia Ltd [2023] VSC 503 involved the plaintiff, Lenehan, seeking approval of costs from a representative proceeding against Powercor Australia Ltd, which had been settled. The matter was heard in the Supreme Court of Victoria. The primary issues before the court were the reasonableness of the costs claimed by the plaintiff's solicitors and the appropriateness of certain fees, including an uplift fee for skill, care, and attention. The court also needed to consider whether special grounds existed for deviating from the usual cost-sharing provisions.

The court reviewed the relevant legal principles, including those set out in Modtech Engineering Australia Pty Ltd v GPT Management Holdings Ltd, Matthews v Ausnet Electricity Services Pty Ltd, and Petersen Superannuation Fund Pty Ltd v Bank of Queensland Limited. It considered whether the costs claimed were reasonable and proportionately incurred, as well as whether they complied with the requirements of the Legal Profession Uniform Law (Vic) and the Civil Procedure Act 2010 (Vic). The court noted the invalidity of conditional costs agreements and the need for transparency in fee agreements. The court also examined the authority for an uplift fee and whether special circumstances warranted its approval.

The court found that the majority of the costs claimed by the plaintiff's solicitors were reasonable, but there were issues with the uplift fee. The court concluded that while an uplift fee for skill, care, and attention could be appropriate in certain circumstances, it was not justified in this case due to the lack of special grounds as per Supreme Court General (Civil Procedure) Rules 2015 (Vic), r 63.34. The court approved the costs with adjustments, reducing the uplift fee and ensuring compliance with the legal framework governing costs in representative proceedings.

The court ordered that the costs of the proceedings be paid by Powercor Australia Ltd in accordance with the approved schedule, with adjustments reflecting the court's findings on the uplift fee and other costs.

Orders